Neelachal Mission Trust vs Punjab National Bank
2022 Latest Caselaw 4443 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                           W.P.(C) No.2372 Of 2022
                           (Through hybrid mode)

        Neelachal Mission Trust, BBSR         ....             Petitioner

                                 Mr. Budhadev Routray, Sr. Advocate
                                           Mr. Saswat Das, Advocate
                                           Mr. A. Mohanty, Advocate
                                  -versus-

        Punjab National Bank,                 ....      Opposite Parties
        Bhubaneswar and others
                                             Mr. G.D. Kar, Advocate
                          Mr. D.P. Nanda, Sr. Advocate for intervener
                                           Mr. A.K. Padhi, Advocate
                                           Mr. B.K. Padhi, Advocate
                                           Mr. S.S. Padhy, Advocate
                                       Mr. A.S. Mohanty, Advocate
                                               Mr. S. Jena, Advocate

                 CORAM: JUSTICE ARINDAM SINHA
                                  ORDER

07.09.2022 Order I.A. No.5507 of 2022 No.

5. 1. Mr. Routray, learned senior advocate appears on behalf of

petitioner. He submits, his client is the trust, represented through its

Chairman. Prayer (v) is being pressed for as relief. He points out from

earlier order dated 25th March, 2022 made in the writ petition that one

of four accounts mentioned in said prayer was erroneously numbered

and relief sought is not in respect thereof. The erroneously numbered

bank account is no.0553002100025560.

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2. He submits, resistance against operation of the three accounts

by his client is from the interveners, whose suit stood dismissed for

default on 3rd December, 2021. It appears, interveners applied for

restoration of the suit and notice was issued to the bank, who, by

impugned letter dated 27th December, 2021 said that in view of notice

for restoration of suit, the case had not been dismissed. He proceeds to

demonstrate that claim no.1 in the suit was in respect of the

erroneously numbered account, against which his client is not pressing

for relief. None of the other three accounts mentioned in prayer (v) are

subject matter of the suit, dismissed for default and as yet not restored.

He submits further, the bank has taken position to abide by order to be

made by this Court.

3. Mr. Kar, learned advocate appears on behalf of the bank and

confirms that his client will abide by order to be made by this Court

regarding prayer of petitioner for allowing operation of the three

accounts as made by prayer (v).

4. Mr. Nanda, learned senior advocate appears on behalf of the

interveners. He draws attention to prayer (iii) in the plaint. It is

reproduced below.

"(iii) Let a decree directing enquiry into the accounts of the 'Neelachal Mission Trust' by an independent auditor to be appointed by the Court for the current financial year i.e. 2016-17 as well as for

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the past three financial years i.e. 2013-14, 2014-15 & 2015-16 be passed."

He submits, all accounts of the trust are subject matter of the suit. He

relies on judgment dated 1st October, 2021 of the Supreme Court in

Civil Appeal nos. 5899 and 5904 of 2021 (Jai Balaji Industries vs.

D.K. Mohanty and others), paragraphs 17.1 and 18 (Manupatra

print). He submits, in similar fact situation, where appeal under section

37 in Arbitration and Conciliation Act was dismissed for default and

restoration application duly made within prescribed time, there was

attempt by the operational creditor to seek insolvency resolution, the

Court declared that where prayer for restoration was pending

consideration, it has no hesitation in saying that in such a case, without

a final decision on the prayer for restoration, insolvency proceeding at

instance of an operational creditor cannot be put into operation.

5. He submits, in any event the writ petition is not maintainable.

He relies on judgment dated 16th September, 1983 of a Division

Bench in the High Court of Delhi (Duli Chand Vs. Mahabir Prshad

Trilok Chand Charitable Trust), paragraphs 16 and 17 (Manupatra

print). He submits, view taken was, a trust is not a legal entity. It is the

trustees who are legal entities. The trustees must join together in

maintaining a suit. Mahabir Prshad (supra) was followed by a

learned Single Judge of Calcutta High Court in judgment dated 12th

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September, 2019 (Vijay Sports Club vs. State of West Bengal and

others) available at 2019 SCC OnLine Cal 2331, paragraph-9 (SCC

online print). Hence, He submits, petitioner alone cannot maintain the

writ petition in seeking to operate accounts of the trust, which are

subject matter of his client's suit and no order should be made, atleast

till restoration of the suit is decided.

6. Mr. Routray replies by drawing attention to annexure-9 in the

writ petition being letter dated 18th January, 2022 from Utkal

University to the institute run by the trust, giving particulars of amount

of fees to be deposited. Further particulars have been given in

paragraph-16C in the writ petition. He submits, by reason of litigation,

the institute and the trust itself is unable to function. He submits

further, the interveners themselves did not file the suit in name of all

trustees. Mr. Nanda submits, all trustees have been impleded, others as

defendants.

7. Upon hearing submissions of parties, Court is of view that

prayer made in the petition is required to be allowed. This is because

the interveners have sought for enquiry on accounts of the trust.

Specific claim in the plaint is in respect of mentioned accounts, which

are separate from the three accounts mentioned in the prayer (v) in the

writ petition. However, interest the interveners need also be protected.

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8. The interveners and other trustees are added as party. Petitioner

will file consolidated cause title. I.A. no.5507 of 2022 is allowed and

disposed of. Now that all the trustees are parties to the writ petition

further directions are being made.

9. There will be order in terms of prayer (v) in the writ petition in

respect of those accounts except erroneously mentioned account

no.0553002100025560. Petitioner is required to obtain and furnish

quarterly statement of accounts in respect of the three accounts to be

operated pursuant to this order, to added opposite parties.

Continuance, termination or otherwise of this order will be subject to

final order made in the suit of the interveners being O.S. no.13 of

2016 (Sri Sudhakar Pati and others vs. Sri Damodar Pati and

others) pending in the Court of District Judge, Khurda at

Bhubaneswar.

10. With above directions, the writ petition is disposed of.

(Arindam Sinha) Judge Sks